Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
Barrett N. Weinberger v. United States
Citations: 268 F.3d 346; 88 A.F.T.R.2d (RIA) 7226; 2001 U.S. App. LEXIS 21498; 2001 WL 1172758Docket: 99-4553
Court: Court of Appeals for the Sixth Circuit; October 5, 2001; Federal Appellate Court
Barrett N. Weinberger, a disbarred attorney, appealed the denial of his motion to vacate his sentence under 28 U.S.C. § 2255. His appeal was heard in the Sixth Circuit Court of Appeals, which affirmed in part and reversed in part the district court's decision. Weinberger had been involved in legal work for Dorette K. Fleischmann and her estate from 1989 to 1994, during which he embezzled over $1 million without the clients' knowledge, also failing to pay $370,624 in federal income taxes on the embezzled funds. He was indicted on October 1, 1997, on multiple counts, including mail fraud, wire fraud, and tax evasion. On February 6, 1998, Weinberger entered a plea agreement, pleading guilty to select counts of mail fraud and tax evasion, while cooperating with the government for restitution of the defrauded amounts. The plea agreement included provisions regarding the calculation of his offense level under the sentencing guidelines. On June 29, 1998, at Weinberger's sentencing, his counsel objected to the application of the Mandatory Victims Restitution Act (MVRA), effective April 24, 1996, arguing it was not applicable since the offense was completed prior to its enactment. The district court dismissed this objection, stating it was applying the Victim and Witness Protection Act (VWPA), effective in 1994, to require full restitution to victims and the IRS. Weinberger's counsel did not contest the offense level calculation, which determined a total offense level of 20 and a criminal history category of I, resulting in a sentencing range of 33-41 months. The court sentenced Weinberger to 41 months of imprisonment and three years of supervised release, ordering him to pay $370,624 to the IRS and $1,285,243.25 to fraud victims, with restitution managed through the Inmate Financial Responsibility Program and an installment plan. There was no appeal filed regarding the conviction or sentence. On February 19, 1999, Weinberger submitted a pro se motion under 28 U.S.C. 2255, focusing on sentencing issues rather than guilt, which the court denied on October 21, 1999. Weinberger filed a timely notice of appeal on December 16, 1999, and the district court certified four issues for review. The appellate court reviews 2255 petitions de novo, with factual findings assessed for clear error. Legal conclusions and group offense decisions are also reviewed de novo, while restitution orders are reviewed for abuse of discretion. A 2255 motion must allege a constitutional error, an improper sentence, or a fundamental legal error and typically cannot raise sentencing challenges not previously made on direct appeal. Weinberger claims that ineffective assistance from his trial counsel prevented him from challenging four sentencing rulings during his sentencing and direct appeal. Under the Strickland v. Washington standard, ineffective assistance can allow for review of issues not previously raised in a 2255 motion. He presents four claims on appeal: 1) offense level calculation, 2) restitution to fraud victims, 3) restitution to the IRS, and 4) scheduling of restitution payments. While his 2255 motion explicitly applied the ineffective assistance theory to his first and fourth claims, it did not do so for the second and third claims, leading the district court to reject those claims. On appeal, Weinberger applies the ineffective assistance argument to all four claims. Generally, issues not raised in the district court cannot be brought up on appeal; however, this situation is deemed an "exceptional case" due to the potential for a "plain miscarriage of justice," particularly as Weinberger is pro se. Consequently, he may extend the ineffective assistance theory to the second and third claims regarding restitution. To prove ineffective assistance, Weinberger must show that his counsel's performance was deficient and prejudicial, meaning there is a reasonable probability that a different outcome would have occurred but for the errors. The government concedes that trial counsel was deficient for failing to challenge the sentencing aspects in question but disputes the claim of prejudice. It argues that Weinberger cannot show a reasonable probability that the lack of challenge would have altered his sentence regarding three of the four rulings, while acknowledging the objection to the IRS restitution amount. Weinberger fails to demonstrate prejudice for two of his claims, making the determination of counsel's deficiency unnecessary for those claims. However, he successfully shows both deficiency and prejudice regarding the restitution orders to his victims and the IRS. Weinberger challenges his sentence on two grounds related to the grouping of his convictions for sentencing purposes. The district court grouped Counts 1 and 6, which pertain to mail fraud and interstate transportation of money, but did not group Count 12 for tax evasion. Weinberger argues that Count 12 should be grouped with the other two counts, which would adjust his base offense level to 21 and eliminate the multi-group enhancement, resulting in a final adjusted offense level of 18 instead of 20. Consequently, this would lower his sentencing range from 33-41 months to 27-33 months. Additionally, Weinberger claims double counting of criminal conduct in his sentencing. He argues that the same conduct was used to calculate both the base level for the fraud offense and as a specific offense characteristic for the tax evasion count. However, the court noted that even if double counting occurred, it would not affect the adjusted offense level, which would remain at 20 due to the proximity of the offense levels. The court indicated that regardless of whether the tax evasion count was grouped, the multi-group enhancement would still apply due to the closeness of the offense levels. Thus, Weinberger's final adjusted offense level remains at 20 unless the counts are grouped. Weinberger argues that his fraud and tax evasion counts should be grouped under USSG 3D1.2 due to substantially the same harm. He presents two main arguments: 1. **Substantial Harm Argument**: Under USSG 3D1.2(c), he claims the counts should group because the tax evasion count is based on income from the fraud. He cites the Sentencing Commission's guidance suggesting that tax evasion relates to the offense generating unreported income and references United States v. Haltom, which supports grouping related counts. 2. **Offense Level Basis**: He also invokes USSG 3D1.2(d), stating both counts' offense levels are based on dollar loss, indicating they involve substantially the same harm. The court, however, finds Weinberger's arguments unpersuasive. Citing United States v. Williams, it clarifies that USSG 3D1.2(d) does not guarantee automatic grouping and that differing harm measures between counts can justify not grouping them. The court references United States v. Vitale, which involved similar charges and concluded that wire fraud and tax evasion, while related, were not sufficiently connected to require grouping. The court distinguishes Vitale from Haltom, noting that the tax count's enhancement did not lead to a different outcome in Weinberger's case. It also rejects the claim that tax evasion must always group with the generating offense, pointing out the non-binding nature of the Sentencing Guidelines publication Weinberger cites. Tax and fraud charges should not be grouped together, as established by the Third Circuit in Vitale and supported by other courts, including the Tenth and Eastern Districts of New York, which highlight that the nature and impact of tax evasion and mail fraud differ significantly. Grouping these offenses could lead to unjust sentencing outcomes, such as allowing a defendant to circumvent penalties associated with tax evasion. In the case of Weinberger, the district court determined that his fraud and tax evasion counts involved distinct elements and victims, justifying separate treatment. Weinberger's reliance on a distinguishable Fifth Circuit case and a non-binding Sentencing Commission publication was deemed insufficient to challenge this rationale. Weinberger also contested the district court's restitution order of $1,285,243.25, asserting violations of the Ex Post Facto Clause and claiming inadequate consideration of his financial situation. While the court applied the Victim and Witness Protection Act (VWPA) rather than the Mandatory Victims Restitution Act (MVRA), it acknowledged concerns regarding its application. The district court had indicated that the restitution was appropriate under both frameworks and had considered relevant financial details, including Weinberger's income and employment prospects, ultimately affirming the restitution order based on his capability to repay. The district court's considerations regarding restitution for Weinberger were appropriate in some respects, as future employment and earning potential can be relevant under the Victim and Witness Protection Act (VWPA). However, the court failed to consider all necessary factors, leading to an abuse of discretion when ordering Weinberger to pay $1,285,243.25 in restitution over five years. The court did not adequately evaluate Weinberger's financial resources, earning ability, and those of his dependents, nor did it assess the impact of his disbarment on his ability to pay. The restitution amount, approximately $257,000 per year, significantly exceeds Weinberger's previous income and does not account for taxes and necessary living expenses. Additionally, Weinberger's counsel's failure to appeal the restitution order constitutes cause for his inability to challenge it, and he can demonstrate prejudice due to ineffective assistance. The court's lack of a comprehensive evaluation of all factors under VWPA necessitates a reversal of the restitution order and a remand for further inquiry into the appropriate amount. Furthermore, regarding the tax evasion charge, although Weinberger pleaded guilty only to one count, the court ordered him to pay $370,624 in restitution to the IRS, reflecting the total tax loss over five years, which raises additional concerns about the appropriateness of the restitution amount. Weinberger argues that the district court could only order restitution related to Count 12, absent a specific provision in the plea agreement for full restitution under 18 U.S.C. § 3663(a)(3). The government agrees with this assessment. Weinberger demonstrates ineffective assistance of counsel, qualifying him for collateral relief under § 2255, as his counsel's performance was deficient and prejudicial. The court references Ratliff, where a failure to appeal a wrongful restitution award constituted cause for a petitioner’s inability to appeal. In Weinberger's case, his trial counsel not only failed to appeal the incorrect restitution order but also mistakenly objected to the restitution calculation, which included tax years beyond what his guilty plea encompassed. Specifically, Weinberger only pleaded guilty to tax evasion for 1993, meaning the years 1990-92 should not have been included in the restitution calculation at all. At sentencing, the counsel withdrew the erroneous objection without clarifying the mistake, leading to an order for full restitution covering 1990-94 that was not supported by the plea agreement. The district court ruled that the issue was not preserved for appeal due to the withdrawal of the objection. The deficiencies in counsel's performance exceeded the Ratliff standard, as a proper objection could have led to a favorable outcome for Weinberger. Citing United States v. Gall, the court notes that restitution should only be ordered for crimes charged and convicted unless specifically agreed upon. The government's intent for full restitution was not reflected in the plea agreement, making the $370,624 restitution order invalid under the statute, warranting correction through § 2255 collateral relief. Weinberger argues that the district court improperly delegated the specifics of his restitution installment payment plan to the Bureau of Prisons and his probation officer. The court ordered Weinberger to immediately pay restitution of $1,285,243.25 to his victims, with provisions for payments through the Inmate Financial Responsibility Program (IFRP) and a plan to be developed with his probation officer. Citing Whitehead v. United States, Weinberger contends that the fixing of probation terms is a judicial act that cannot be delegated. However, the Whitehead case does not directly apply, as it focused on whether a defendant was properly placed on probation rather than on the delegation of payment schedules. The court noted that it is acceptable for a district court to delegate the determination of the rate of installment payments as long as the total restitution amount is set by the court. Citing previous cases, the court concluded that it acted within its authority by establishing Weinberger's total restitution and delegating the payment schedule to his probation officer, thus affirming the district court's actions. The Ninth Circuit affirmed that district courts have the authority to modify any conditions of probation, including restitution, during the probationary period. Defendants can bring concerns about the probation department's orders to the district court for modification. Weinberger challenged the district court's decision to delegate the scheduling of his restitution payments to the Bureau of Prisons' Inmate Financial Responsibility Program (IFRP), which is designed to help inmates meet financial obligations while incarcerated. Although some circuits have deemed similar delegations unconstitutional due to the discretionary nature of payment schedules under the IFRP, the Ninth Circuit upheld the use of the program. The court ruled that the district did not improperly delegate authority to the probation officer or the Bureau of Prisons, citing precedent that allows sentencing courts to delegate the timing and manner of restitution payments. The IFRP was recognized as a legitimate term of imprisonment, and the district court's order reflected compliance with its conditions rather than arbitrary directives from prison officials. The district court's sentencing order was upheld, affirming most of its judgment but reversing specific aspects regarding Weinberger's restitution orders. The court instructed the district court to reassess the restitution owed to Weinberger's victims under the Victim and Witness Protection Act (VWPA) and to adjust the restitution amount payable to the IRS from $370,624 to $160,004. The document also references a legal precedent where the government argued that challenges to restitution orders cannot be made in a 2255 petition, a position not uniformly accepted across circuits. The court distinguishes its stance from others by allowing challenges to restitution orders based on claims of ineffective assistance of counsel. Furthermore, it critiques the grouping of tax evasion and fraud for sentencing purposes, preferring the rationale that these offenses should not be combined due to differing harms and victims. Finally, it notes that the determination of restitution terms is a judicial function that should not be delegated to probation officers. Several court cases are cited, including United States v. Coates and United States v. Miller, but the excerpt indicates a refusal to follow these precedents. Although 18 U.S.C. § 3651 has been repealed, 18 U.S.C. § 3563(c) retains similar provisions allowing courts to modify probation conditions at any time before the probation term ends, guided by the Federal Rules of Criminal Procedure. Specifically, Rule 32.1(b) mandates a hearing and legal counsel for any modification unless the changes favor the probationer and the government attorney does not object. An extension of probation terms is not considered favorable under this rule. The Inmate Financial Responsibility Program (IFRP) outlines the process for establishing an inmate's payment schedule, which prioritizes financial obligations such as special assessments, restitution, fines, and other court costs. Non-compliance with the IFRP can lead to various penalties, including reduced pay and stricter spending limits. While Weinberger acknowledges the potential consequences of non-compliance, he does not contest this section specifically but raises a delegation issue. Previous due process challenges to the IFRP have been consistently dismissed. Senior District Judge Averne Cohn expresses a separate opinion, arguing against the dissent's view that only a district judge should set restitution payment schedules, considering it an unconstitutional delegation of judicial authority. He argues that such a perspective prioritizes form over substance, emphasizing that a probation officer merely facilitates the payment schedule rather than determining it. District courts depend on probation officers for critical information to inform sentencing decisions, including the preparation of presentence investigation reports and recommendations for appropriate sentences in accordance with the Federal Sentencing Guidelines. When restitution is part of the sentence, probation officers also suggest the restitution amount. Ultimately, however, it is the district court that determines the final sentence and restitution amount. In the case presented, the district court did not specify the payment schedule for the ordered restitution of $1,285,243.25, which will be managed through the Bureau of Prisons Inmate Financial Responsibility Program. The Judgment states that the payment plan will be developed by the defendant and the probation officer, ensuring it is tailored to the defendant's financial situation and the needs of dependents, which the court considered in its decision. The defendant's objection regarding the need to consider his ability to pay was deemed moot. This approach allows for flexibility in establishing the restitution payment schedule, recognizing that accurate financial circumstances are best assessed closer to the time payments are due. Courts often lack sufficient information during sentencing to set a definitive schedule, particularly for defendants facing imprisonment. The probation officer's ongoing supervision is crucial for determining the defendant's ability to pay. The dissenting opinion overlooks the importance of the probation officer's role and the impracticality of requiring district courts to micromanage financial terms for each defendant. Legislative history supports the delegation of setting specific restitution terms to probation officers, aiming to simplify the court's responsibilities in these matters. Concerns regarding the potential abuse of authority by probation officers are deemed unfounded. When a probation officer collaborates with a defendant to create a restitution payment schedule, any disputes that arise must be resolved by the district court. The Judgment mandates that the payment schedule is to be formulated by the defendant alongside the probation officer, thereby placing some responsibility on the defendant. However, the district court retains ultimate authority over the restitution payment schedule and has not relinquished its judicial function to the probation officer. Allowing a probation officer to assist in establishing the payment schedule, after the district court has determined the restitution amount, is viewed as a practical approach to address future uncertainties related to the defendant's financial obligations. Judge Karen Nelson Moore concurs in part and dissents in part, agreeing with the majority that the district court did not adequately consider the defendant's earning ability when ordering restitution of $1,285,243.25. However, she disagrees with the majority's position that the district court can delegate the responsibility of setting the restitution payment schedule to the Bureau of Prisons while the defendant is incarcerated and to a probation officer upon release, viewing this delegation as improper. She acknowledges that the district court correctly mandated restitution under the Victim and Witness Protection Act but criticizes the discretion exercised in determining the restitution amount. The VWPA mandates that a court must evaluate several factors when determining restitution, including the victim's loss, the defendant's financial resources, and the earning potential of the defendant and their dependents. In Weinberger's case, the district court ordered him to pay $1,285,243.25 in restitution within five years of his prison release, which would require him to earn over $400,000 annually, despite his previous maximum legal income of $68,000 and his current disbarment. The court's analysis of his earning potential was limited to general observations about his abilities and a reliance on a probation report asserting he could obtain gainful employment. However, merely stating that he is intelligent and well-educated does not provide sufficient evidence for the court's restitution order, as there must be concrete indications of the defendant’s capacity to meet the restitution requirements. Recent case law emphasizes that courts must have some evidence supporting a defendant's ability to pay the ordered restitution, as imposing unpayable amounts undermines respect for judicial orders and reduces incentives for lawful employment. The district court ordered full restitution based on the defendant's potential to earn six times his pre-conviction income, which the probation office acknowledged as possible but not realistic given typical post-incarceration employment scenarios. The author expresses concern that the district court's order disregards the defendant's actual future earning capability, indicating an abuse of discretion that undermines respect for judicial orders. The author agrees with the majority to reverse the full restitution order and remand for a reassessment of the restitution amount. Additionally, the author disagrees with the majority's decision to allow the district court to delegate the task of establishing a restitution payment schedule to the Bureau of Prisons and the defendant's probation officer. Citing a split among appellate courts, the author notes that several circuits (Second, Third, Fourth, Fifth, and Seventh) have ruled against such delegation, asserting it is a judicial function that must remain with the court. In contrast, only the Ninth and Eleventh Circuits have permitted this delegation. The author believes that the majority position prohibiting delegation aligns better with statutory requirements, emphasizing the court's exclusive authority in setting restitution schedules. The court holds exclusive authority to determine the amount of restitution, whether it should be paid in a lump sum or in installments, and to establish the specifics of any payment schedule. This is supported by 18 U.S.C. § 3663(f)(1), which allows the court to require restitution within a specified timeframe or in installments, and 18 U.S.C. § 3572(d), which mandates that the court set payment terms for monetary penalties. The current statutes reiterate this principle, confirming that the court decides the payment schedule unless an alternative is established. Only after the court has determined the restitution amount and payment plan can enforcement by the Bureau of Prisons or probation officers occur. The imposition of restitution is part of the sentencing process, as indicated in 18 U.S.C. § 3663(a)(1). The authority to set restitution and its payment schedule cannot be delegated to non-judicial entities, as this would violate constitutional provisions. While acknowledging the challenges courts may face in setting reasonable payment schedules, particularly in cases involving lengthy incarceration, the author maintains that the Constitution and statutory language do not allow for alternative arrangements. The dissent emphasizes that while nonjudicial officers may assist in judicial functions, ultimate responsibility must remain with a judicial officer. Additionally, while probation officers can propose payment plans, the final authority to approve them lies with the court, in line with Article III of the Constitution.